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Four people are recovering today from injuries they received in a boating accident on the Alafia River.
Hillsborough County Fire Rescue said the boat apparently struck a bridge piling near I-75 Saturday night.
One victim received serious injuries and was air lifted to Tampa General Hospital. Three other victims were taken to the hospital by ambulance.
The investigation into the cause of the accident will be handled by the Hillsborough County Sheriff's Office.
Man Rescued About 1 Hour After Going In Water
A Maryland man was examined for injuries after being accused of jumping off a cruise ship that had departed from Fort Lauderdale in Florida hours earlier.
The crew of the Coast Guard Cutter Bluefin rescued Scott Durrin, 29, of Rockville, Md., about 50 miles east of Boca Raton, Fla., after he reportedly jumped from the Carnival Liberty Sunday night, the U.S. Coast Guard said.
The Coast Guard was notified by the cruise ship captain that Durrin had possibly jumped from the cruise ship around 11:35 p.m. Sunday. Durrin was believed to have fallen about 36 feet into the water.
Officials said the Liberty crew threw life rings and jackets into the water, while the Coast Guard sent out a helicopter and rescue.
The Coast Guard cutter was only nine miles away from the Carnival Liberty when the call came in, so the crew arrived to the search area almost immediately and located Durrin less than an hour later at 12:22 a.m.
Petty Officer James Judge said Durrin appeared to be intoxicated. The Carnival Liberty departed from Fort Lauderdale Sunday about 4 p.m. The Cutter Bluefin is an 87-foot patrol boat homeported in Fort Pierce, Fla.
Many cruise ship accidents, sexual assaults and disappearances are alcohol related. Our firm has more information regarding alcohol on cruise ships.
By Terry Tomalin
St. Petersburg Times
The marine industry supports an effort to require classes that reduce water crashes.
Florida once again leads the nation in boating accident fatalities, but a new effort to expand safety education requirements to all boaters may, for the first time, have the support of the state's $17-billion marine industry.
National statistics show that boaters who receive formal water safety education are 25 percent less likely to be involved in an on-the-water collision than those who do not.
Florida law requires that only boaters 21 and younger attend formal boater safety training. But if that age requirement were expanded, as many as 20 lives could be saved each year, according to the state's chief boating law administrator.
A review of state accident records for 2006 shows that 86 percent of all fatal accidents involved boaters older than 21 who were not required to have formal boating safety education.
"We are clearly not reaching everybody that we need to," said Capt. Richard Moore of the Florida Fish and Wildlife Conservation Commission. "Nationally, the statistics show that when older boaters are included in education programs, fatalities drop up to 25 percent."
Federal and state officials agree that Florida could improve its boating safety record if the state Legislature required more boaters to undergo formal training.
"We have lobbied for that for years," said Moore, the state's chief boating law administrator. "So far, we haven't been able to get the legislators to support it."
Last year, 69 people died on the state's waterways, marking the 15th time in the last 20 years that Florida led the nation in the number of boating deaths (down from 1987's historic high of 106). Florida also leads the nation in the number of registered boats -- 1,024,375 -- and is the only state with a year-round boating season. The state's rate of fatalities per 100,000 registered boats is just slightly above the national average.
In the past, efforts to expand the state's mandatory boating education requirements have met with opposition on many fronts. But as the FWC prepares legislation to increase the minimum age requirement for education in five-year increments over the next 10 years, Florida's marine industry appears ready to supply its backing.
"I think mandatory education should apply to everyone," said Bill McGill, president and chief executive officer for Marine Max, the nation's largest boat dealer. "The state just needs to make sure that the information boaters receive is practical and can be put to use on the waterways."
McGill, whose Clearwater company sells 10,000 boats a year, long ago instituted an in-house program to train new boaters.
"We don't just sell somebody a boat and turn them loose," he said. "We have a staff of trained captains who will spend anywhere from a couple of hours to a few days making sure our customers know how to operate their boat, and more importantly, understand the rules of the road."
John Sprague, chairman of the governmental affairs for the Marine Industries Association of Florida, said his organization will also back state efforts to expand its programs.
"That has always been one of our No. 1 priorities ... to educate the public," Sprague said. "We would support (an age increase) if it was done incrementally and it did not overwhelm the system."
Moore, a career law enforcement officer who is passionate about boating safety, appeared pleasantly surprised.
"We were a little nervous moving ahead with this," he said. "We figured we would receive some opposition. But it is good to know that we have the industry's backing."
A national trend
Jeff Hoedt, with the U.S. Coast Guard's Office of Boating Safety in Washington, D.C., said a review of national boating accident statistics show a common trend. "Most people involved in boating accidents are in their later 30s or early 40s," he said. "Those are the very people who are not getting any formal boating education."
Boating education laws vary from state to state. Alaska, for example, has no boating education requirement and the worst safety record - 37.8 fatalities per 100,000 registered boats.
Iowa has the best safety record with 1.15 deaths per 100,000 registered boats. "I credit that to an exemplary boater education program," said Randy Edwards, the state's boating law administrator.
Florida's fatality rate is 6.41 percent, slightly above the national average of 5.39 percent, ranking it 30th among the 50 states.
Minnesota, a state with more than 4,500 lakes and 700,000 powerboats, is the second-safest state for boaters.
"Our boater education law has been in effect since 1975," said Kim Elverum, Minnesota's top boating safety officer. "Since the program started, we have educated more than 175,000 people. I think that has made a huge difference."
When it comes to mandatory boater education, the jury is in, said Ruth Wood, president of the BoatU.S. Foundation, which represents more than 650,000 recreational boaters nationwide.
"Education is our mission," she said. "An educated boater is more confident and as a result, more competent. We support mandatory education for all boaters."
Ed Cates, a lieutenant with the FWC's Tallahassee office, personally reviewed all 671 boating accident reports from 2006 and said his review supports the Coast Guard's claim.
"It you have been through a safe boating class, you are less likely to be involved in a boating accident," he said.
Cates also noticed that most victims in fatal accidents were not wearing personal flotation devices, PFDs. "If you want to stay alive, wear your PFD," he said.
A real lifesaver
Florida law requires that only children younger than 6 years old, personal watercraft operators and those towed behind boats (i.e., water skiers) must wear a life jacket.
But Dwayne Somers of the Pinellas County Sheriff's Office's Marine Unit said that most boaters wish they were wearing a life jacket after it is too late.
"We have seen that most deaths don't occur during the accident itself, but after the fact," he said. "People suddenly find themselves thrown from the boat, in the water, an unfamiliar environment, and panic."
State records show that in 88 percent of the 2006 boating fatalities, the victims were not wearing life jackets.
"What happens is somebody hits their head and gets knocked out," Somers said. "Afterward we usually hear the same thing from the family. ... They were a strong swimmer."
The Pinellas Sheriff's Office feels so strongly about flotation devices that on weekends deputies patrol local boat ramps ready to loan life jackets to boaters with children who may not have the proper equipment. "Our Operation Kid Float program has been a big success," Somers said. "The kids love it. We give them a sticker and a T-shirt. They think it is cool to wear a life jacket."
Moore, who is nothing short of a zealot when it comes to preaching life jacket use, said national efforts to pass mandatory life jacket laws for adult boaters have met with strong resistance.
"The greatest opposition has come from the boaters themselves," he said.
In Florida, many boaters complain that life jackets are too hot for everyday wear. But Moore scoffs at that idea, pointing to a new generation of belt and suspender-style devices that are less cumbersome than traditional life jackets.
"I will wear mine all day on the water and forget that I have it on," Moore said.
The new versions are expensive -- Boaters World in South St. Petersburg sells the basic suspender model for $99 -- but Moore believes they are well worth the investment.
"They're a bit of an investment," he said. "But how much is your life worth?"
Fast Facts:
Young captains need to know
Since October 1996, Florida law has required that anyone 21 years of age or younger take a National Association of State Boating Law Administrators, or NASBLA, approved boating education course and carry boating education and photo identification cards in order to operate a vessel with a motor of 10 horsepower or more. Identification cards are good for life.
To get a boating license
To get a boater education card, prospective students can either take an approved, on-site class (see below) or contact the Florida Fish and Wildlife Conservation Commission at www.myfwc.com to learn more about a $20 online "How to Boat Smart" course. The FWC also offers a free correspondence course that may be obtained by calling (850) 488-5600 or writing to the FWC, Division of Law Enforcement Boating Safety Section, 620 South Meridian Street, Tallahassee, FL 32399-1600.
Florida law also requires mandatory education for those who have had a criminal violation of state boating laws, a noncriminal violation of state boating laws if it involved a boating accident or two noncriminal boating safety infractions occurring within a 12-month period. Violators may only take on-site boating safety courses.
To find a boating safety course near you, call:
Boat US: Toll-free 1-800-336-2628, or go to www.boatus.com
United States Power Squadron: Toll-free 1-888-367-8777, or go to www.usps.org
Online resources
The U.S. Coast Guard Auxiliary offers regular boating safety classes throughout the Tampa Bay region. Go to http://cgaux7.org/pub_classes.asp.
Boat-Ed Online: www.boat-ed.com
Boater 101: www.boater101.com
Nautical Know-how: www.boatsafe.com
PWC Safety School: www.pwcsafetyschool.com
American Safety Council: www.floridaboatingcourse.com
If you or someone you know has been injured in a boating accident, contact our boating accident lawyers now for a free consultation.
When a Royal Palm Beach man, 27, died Sunday in a personal watercraft collision on Lake Osborne, he became the latest casualty of the fast-moving vessels flooding the area's waterways.
Palm Beach County last year had more personal watercraft accidents than any other Florida county. One reason for the 20 accidents: the county's lakes, canals and Intracoastal Waterway increasingly are becoming congested with vessels from Broward and Miami-Dade counties, where lakes and canals are more restrictive to personal watercraft vessels, officials say.
As a result, Palm Beach County Sheriff's Office and Florida Fish and Wildlife Conservation Commission officials Monday announced a crackdown to stop vessel speeding, require proper registration and reduce a rise in vessel theft. Police will educate riders on safety.
Personal watercraft vessels "are misunderstood when they are purchased," Sheriff's Office Sgt. Larry Gamage said. Many riders assume "they don't require the skill needed to operate them."
Like operators of other recreational motorized water vessels, owners of personal watercraft vessels don't need to take safety education classes in Florida if they are older than 21.
It wasn't clear if the two men involved in Sunday's collision at John Prince Memorial Park west of Lake Worth took classes.
Paulo Regis was on his 2006 Bombardier, following his brother-in-law's 2006 Bombardier, according to a preliminary Fish and Wildlife report. They were westbound on the lake when the other watercraft struck Regis around 4 p.m.
He died an hour later at JFK Medical Center in Atlantis.
Both men were drinking alcohol earlier in the day, Fish and Wildlife officials said. What impact, if any, alcohol had on the collision is under investigation. Blood was drawn from Regis' brother-in-law, whose name was not released, for alcohol-level testing.
Regis was the first person to die in a watercraft vessel accident in Palm Beach County since 2005, according to Fish and Wildlife data. Last year, 21 people were injured in accidents, up from 11 in 2005.
Many accidents occur because of operator inattention and lack of experience, officials said. Collisions mostly happened in lakes and ponds, Sheriff's Office officials said.
"These vessels are getting faster, and vessel traffic is increasing," said Fish and Wildlife Lt. Ed Cates, an assistant boating safety coordinator. "Operators are just not paying attention. It takes just a second for something to go wrong."
The beefed-up law enforcement of personal watercraft vessels will continue through the busy summer boating months and pick up on major holidays, officials said.
Deputies and officers will target Lake Ida, Lake Osborne, Pine Lake and the Intracoastal Waterway's speed-restricted zones.
By Leon Fooksman
South Florida Sun-Sentinel
A 65-year-old man died trying to help out his son, whose boat was disabled in the Carrabelle River Monday.
The Florida Wildlife Conservation Commission reported today that Glen Roger Buffkin, 65, of Carrabelle, was trapped and died after his 31-foot shrimp boat overturned around 9 a.m. Monday while entering the river.
Buffkin was on the water to help his son, whose boat had broken down.
An 18-year-old passenger on his boat, Nathan Crum, kicked out a cabin window and escaped.
The boat went down in water approximately 15 feet deep.
Investigator Eric Johnston said Crum repeatedly swam down to the cabin but could not locate Buffkin. A passing boat picked up Crum and notified The Moorings marina in Carrabelle who notified law enforcement.
He said a Labrador retriever that went everywhere Buffkin went apparently died in the mishap.
Johnston said Buffkin had gone out on his vessel Monday when his son's boat broke down on Apalachee Bay. Buffkin was returning to land with the broken starter when the accident occurred.
The cause of the accident is unknown, and the investigation will take months.
Buffkin's death marks the 46th confirmed boating fatality in Florida since Jan. 1. In addition, three other boaters are missing at sea off Lee, Pasco and St. Johns counties and presumed drowned.
Florida’s boating accident rate (671) for 2006 was second only to California’s 757. Florida led the nation with 69 fatalities, compared to 47 for Texas and 44 for California.
The Florida Fish and Wildlife Conservation Commission (FWC) said the high numbers reflect the reality that Floridians own more than 1 million registered recreational vessels, and they use them throughout the year.
All but eight of the fatalities were the result of drowning, and none of the drowning victims were wearing life jackets.
The most likely county for boaters to be in an accident was Monroe, followed in order by Palm Beach, Miami-Dade, Pinellas, Lee, Broward, Collier, Brevard, Escambia and Duval.
The most likely month for the accident to happen was July. The most likely time of day to be in an accident was 4-6 p.m., and the most common type of accident was a collision with another vessel or a fixed object.
Accidents occur most frequently on rivers or creeks, but the number of accidents on the ocean or gulf or in a bay or sound are almost as high. Nearly 600 of the state’s accidents occurred while the vessel was cruising, and more than 400 of them occurred when the operator was not trying to change direction while cruising.
Small vessels, especially those under 18 feet long, were the most likely
to be involved in accidents.
A typical accident involved a privately owned vessel, operated carelessly or without a lookout, with the operator being a male at least 22 years old – most likely 36-50 years old.
The 85-page report on 2006 boating accidents in Florida is available online at www.MyFWC.com/law/boating.
Charles R. Lipcon is recognized by Super Lawyers as one of the Top Attorneys in Florida!
Only 5 percent of the total lawyers in the state are selected for inclusion in Super Lawyers.
Congratulations Charles!
MICHAEL COPPOLA v. LOGISTEC CONNECTICUT, INC., ET AL.
SUPREME COURT OF CONNECTICUT
283 Conn. 1; 2007 Conn. LEXIS 265
July 3, 2007, Officially Released
PROCEDURAL POSTURE: Plaintiff claimant appealed from the decision of the compensation review board (Connecticut), which affirmed the decision of appellee, the workers' compensation commissioner for the third district, that dismissed plaintiff's claim for benefits under the Workers' Compensation Act (the state act), Conn. Gen. Stat. § 31-275 et seq., which arose from an injury while working for defendant employer.
OVERVIEW: Plaintiff was in the business of unloading ships in a harbor and was injured while descending a ship's hold after a step broke beneath him. Plaintiff filed a claim under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.S. § 901 et seq., and was awarded compensation. Plaintiff subsequently filed his claim under the state act, which the commissioner dismissed for lack of jurisdiction. On appeal, plaintiff claimed that the board improperly concluded that the commissioner lacked jurisdiction over his claim because the injury occurred on the navigable waters of the United States and, therefore, the federal government had exclusive jurisdiction over the claim under U.S. Const. art. III, § 2 and the longshore act. The court agreed with plaintiff and held that the state has concurrent jurisdiction with the federal government over claims involving injuries incurred on navigable waters when the employer and the employee are locally based, the employment contract is performed within the state and partly on land, the injury took place on the state's territorial waters and the employer was required under the state act to secure compensation for any land based injuries.
OUTCOME: The court concluded that plaintiff's claim was governed by federal case law and fell squarely within the twilight zone doctrine as adopted by the United States Supreme Court in those cases. As such, the court held that the board improperly determined that the claim was not within the jurisdiction of the commissioner. The court reversed the judgment and remanded the case to the board with direction to sustain plaintiff's appeal.
ARTHUR J PRESTENBACH, Plaintiff-Appellant v. GLOBAL INTERNATIONAL MARINE INC, Defendant-Appellee
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 16649
July 12, 2007, Filed
PROCEDURAL POSTURE: Plaintiff claimant appealed a decision of the United States District Court for the Eastern District of Louisiana, which granted summary judgment to defendant, a marine transportation company, in the claimant's action seeking compensation for injuries under the Jones Act for negligence and vessel owner negligence and for employee benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq.
OVERVIEW: The claimant was hired as a contractor to raise a sunken barge for the company as a "one-shot" job. The claimant alleged that the company's failure to provide him with a fully English-speaking crew was negligence and caused his injury pursuant to 33 U.S.C.S. § 905(b). On review, the court upheld the grant of summary judgment because the claimant was clearly not a Jones Act seaman at the time of his injury and he was not an employee entitled to compensation benefits under the LHWCA. The court agreed that the claimant was an independent contractor and not an employee under the LHWCA in that he billed the company for his work using an invoice and classified himself as a consultant, crane operator, and welder. Further, the barge-raising project was not part of the regular work of the company. The company was also not liable for vessel negligence under § 905(b) because of an allegedly inadequate crew. The company did not breach any of its duties owed to the claimant as an independent contractor in that there were no unseaworthy or negligent conditions on the barge, the tug, the pump, or the sunken barge that contributed to or caused the claimant's injury.
OUTCOME: The court affirmed the district court's grant of summary judgment.
OTAL INVESTMENTS LIMITED, as Owner of the M/V Kariba, for Exoneration from or Limitation of Liability, Plaintiff-Third-Party-Plaintiff-Appellant, UNITED SERVICES AUTOMOBILE ASSOCIATION, ASI AUTO SHIPMENT GmbH, TED L. RAUSCH CO., CHARLES BROOMFIELD, MORGAN MOON, PATRICIA YORK, AUGUSTA ASSICURAZIONI S.p.A., CHN ITALIA S.p.A., CNH TRADE N.V., NEW HOLLAND NORTH, INC., FEDEX TRADE NETWORKS TRANSPORT AND BROKERAGE, INC., O & K ORENSTEIN & KOPPEL A.G., CASE CORPORATION AND TOWER GROUP INTERNATIONAL, ZURICH INSURANCE CO., ALPINA INSURANCE CO., GERLING INSURANCE CO., as subrogee and/or assignee of Schempp-Hirth Flugzeug-Vertriebs-GmbH, DAVID GREEN HILL, LIEBHERR-WERK NENZIG GmbH, LIEBHERR-MISCHTEKNIK, LCT LIEBHERR CONCRETE TECHNOLOGIE, LIEBHERR AMERICA, INC., E.H. HARMS GmbH & CO., BMW OF NORTH AMERICA LLC, Claimants-Appellants, -v.- M/V CLARY, MINERAL SHIPPING CO. PRIVATE LTD., MST MINERALIEN SCHIFFAHRT SPEDITION UND TRANSPORT, CLARY SHIPPING PTE LTD., WALLENIUS WILHEMSEN LINES AS, WILH. WILHEMSEN ASA, ACTINOR CAR CARRIER I AS CAPITAL BANK PUBLIC LIMITED COMPANY, Third-Party-Defendants-Appellees, M/V TRICOLOR, Consolidated Defendant, N.V. FORTIS CORPORATE INSURANCE, Claimants.
Docket Nos. 06-0591-cv(L), 06-0675-cv(con), 06-0789-cv(con), 06-0790-cv(con)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
2007 U.S. App. LEXIS 16021
July 6, 2007, Decided
PROCEDURAL POSTURE: In the early morning hours of December 14, 2002, off the coast of Dunkerque, France, plaintiff's container ship collided with a Norwegian carrier (third-party defendant one) after avoiding a collision with a Singaporean carrier (third-party defendant two). Plaintiff sued for exoneration from liability. The U.S. District Court for the Southern District of New York found plaintiff's ship solely liable for the collision. Plaintiff appealed.
OVERVIEW: The relevant navigational duties were contained in the Convention on the Int'l Reg. for Preventing Collisions at Sea (COLREGS), Oct. 20, 1972, 28 U.S.T. 3459, T.I.A.S. No. 8587, codified at 33 U.S.C.S. § 1602 et seq. The district court correctly held that violations of the COLREGS by plaintiff's ship were a cause of the collision. The district court erred, however, in determining that the COLREGS violations by the third-party defendants did not cause the collision. The appellate court concluded that all three vessels committed violations of the COLREGS that caused the collision. The appellate court found, inter alia, that if third-party defendant one had not chosen to overtake in an unsafe place and in an unsafe manner, the collision would not have occurred; plaintiff's ship would have passed across the third-party defendant one's bow. Thus, the decision by third-party defendant one to overtake and the manner of overtaking was a factual cause of the collision. As for third-party defendant two, if it had not understaffed its bridge and failed promptly to take avoiding action, the collision would not have occurred.
OUTCOME: The appellate court reversed the district court's judgment and remanded for further proceedings. On remand, the district court would have to consider the relative culpability of each vessel and the relative extent to which the culpability of each caused the collision.
JOHN E PARK, Plaintiff-Appellant, versus STOCKSTILL BOAT RENTALS INC, Defendant-Appellee.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 16927
July 16, 2007, Filed
PROCEDURAL POSTURE: Plaintiff seaman appealed the United States District Court For the Western District of Louisiana's grant of summary judgment in favor of defendant employer on the seaman's action under 46 U.S.C.S. § 30104(a) of the Jones Act and general maritime law to recover for injuries suffered while working aboard the employer's vessel. The seaman argued violations of 46 U.S.C.S. §§ 3313(a), 8101(d), 8104(b), and that the vessel was unseaworthy.
OVERVIEW: There was no evidence the employer "required" the seaman to work more than 12 hours in violation of 46 U.S.C.S. § 8104(b). The seaman chose to make a delivery, alone and in the dark, then kept watch overnight after running into a sand bar. Nothing indicated the employer even requested the delivery be made at night or that it knew of the night run or the sand bar incident. There was no evidence the employer knew of a violation of the Certificate of Inspection's manning requirements for purposes of 46 U.S.C.S. § 8101(d), (e). The Certificate was not violated, two days before the seaman's fall, by transiting on the Intercoastal Waterway and a river, because the vessel was operating a "route of less severity" under 46 C.F.R. § 176.110(b) than specified in the Certificate. The seaman testified to only two reasons for his fall: fatigue due to the overnight watch, and faded, old deck paint on the deck. Thus, any violation of the 30-minute run limit in the Certificate had not caused the fall. As to the vessel being unseaworthy, there was no evidence the vessel was not reasonably suited its intended purpose, or that the deck paint was unsafe or not reasonably suited for the deck's purpose.
OUTCOME: The grant of summary judgment was affirmed.
DONNA CURCURU 1 vs. ROSE'S OIL SERVICE, INC. (and three companion cases 2 ).
APPEALS COURT OF MASSACHUSETTS
69 Mass. App. Ct. 510; 868 N.E.2d 1266; 2007 Mass. App. LEXIS 759
July 3, 2007, Decided
PROCEDURAL POSTURE: Plaintiff surviving spouses appealed judgments after rescript by the Suffolk Superior Court Department (Massachusetts) that applied the federal postjudgment interest rate of 2.07% instead of the Massachusetts postjudgment interest rate of 8.14% to judgments obtained under the Death on the High Seas Act (DOHSA), 46 U.S.C.S. § 761 et seq.
OVERVIEW: After a fishing vessel sunk during bad weather on the high seas, the surviving spouses of the lost crew members sued defendant company for wrongful death pursuant to the DOHSA "savings" clause in 46 U.S.C.S. § 767. They claimed that the company negligently performed repairs on the vessel, which conduct was said to be a substantial cause of the accident. Ultimately, after extensive litigation, appeal, and a remand, judgments after rescript were entered in favor of the surviving spouses. The appellate court found that the surviving spouses' DOHSA claims were maritime claims. Because the Supreme Judicial Court articulated a need for consistency with federal law in maritime cases where interest awards were at issue, postjudgment interest on the surviving spouses' DOHSA judgments was properly calculated pursuant to federal law under 28 U.S.C.S. § 1961.
OUTCOME: The judgments after rescript were affirmed.
NOBLE DRILLING (US) INC., NOBLE DRILLING (PAUL ROMANO) INC., SHELL OFFSHORE, INC., AND SHELL DEEPWATER DEVELOPMENT, INC., Appellants v. KELLY FOUNTAIN, Appellee
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2007 Tex. App. LEXIS 5455
July 12, 2007, Opinion Issued
PROCEDURAL POSTURE: Appellants challenged a judgment of the 151st District Court. Harris County, Texas, rendered after a jury verdict, awarding appellee $1,345,900 in appellee's suit against appellants for negligence under the Jones Act and general maritime law.
OVERVIEW: Appellants contended that there was no evidence or factually insufficient evidence of Jones Act negligence giving rise to one appellant's alleged liability in connection with injuries suffered by appellee while performing a routine task and of general maritime negligence as to the second appellant's conduct in regard to injuries sustained by appellee. As to the Jones Act claim, there was legally sufficient evidence to support the jury's finding of negligence against the first appellant. Even though appellee agreed that, as a roustabout, his general duties included lifting, and appellants presented conflicting evidence on the controlling issues of the weight and configuration of the load and the reasonableness and scope of a supervisor's instruction to lift it, appellee presented some evidence to support the jury's finding under the Jones Act that appellant failed to provide him a reasonably safe place to work. As to general maritime negligence, the evidence at most would have permitted a finding that the second appellant was aware of a policy violation, not that it breached any duty that it owed to appellee or that any breach of a duty caused appellee's injuries.
OUTCOME: The instant court affirmed the judgment rendered against the first appellant, reversed the judgment rendered against the second appellant, and rendered judgment that appellee take nothing on its claim against the second appellant. The instant court remanded the case to the trial court for the entry of a new judgment.
DILBERT IVAN CALIX-CHACON, Plaintiff-Appellee, v. GLOBAL INTERNATIONAL MARINE, INC., Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2007 U.S. App. LEXIS 17239
July 19, 2007, Filed
PROCEDURAL POSTURE: Appellant employer sought review of a judgment from the United States District Court for the Eastern District of Louisiana, which denied the employer's motion to dismiss appellee seaman's maintenance and cure suit. On public policy grounds, the district court refused to enforce a forum selection clause designating Honduras as the place for the settlement of any disputes between the parties.
OVERVIEW: The seaman, a Honduras native, became ill while working on the employer's vessel. The seaman underwent heart transplant surgery and sought maintenance and cure. The district court held that the forum selection clause was unenforceable under general maritime law and under the Shipowners' Liability Convention of 1936. The seaman was then awarded maintenance and cure after a trial. On appeal, the court held that the Convention, which merely codified general maritime law in the U.S., did not prohibit a federal district court from refusing to entertain maintenance and cure claims brought by foreign seamen in a United States court, particularly where the seaman's contract contained a clause designating a different forum. Instead, the district court needed to consider factors such as whether the selection clause was the product of fraud or overreaching; whether the seaman would for all practical purposes be deprived of his day in court because of the grave inconvenience or unfairness of the selected forum; whether fundamental unfairness of the chosen law would deprive the seaman of a remedy; and whether enforcement of the clause would contravene a strong public policy of the forum state.
OUTCOME: The court reversed the district court's judgment and remanded the case for the district court to consider whether the forum selection clause was enforceable under the factors outlined. In making its determination, the district court was to consider, among other things, the available medical care in Honduras and whether a remedy was available to the seaman under Honduran law.
CTV News
Canadian Press
HALIFAX -- A Cook Islands safety probe into how Laura Gainey was swept off the tall ship Picton Castle was delayed partly because ship staff accounts of events differed with what appeared in a preliminary report, says the South Pacific nation's transport secretary.
The island nation halfway between New Zealand and Hawaii is conducting the inquiry because the training vessel, based in Lunenburg, N.S., is registered in the Cook Islands rather than Canada.
Aukino Tairea, the country's transport secretary, said in an interview that he expects to receive the report this week. He had originally expected it at the end of May.
The original investigation was conducted by retired naval captain Andrew Scheer, a consultant based in Fort Lauderdale, Fla., and was released in March to the Cook Islands ships registry.
Tairea then appointed a three-person review panel - including a New Zealand lawyer, a Cook Islands police inspector and a member of the island's ship registry - to go over its findings.
Asked if the panel had any problems with the initial report, Tairea replied, "It didn't quite provide the information that stacked up with some of the information provided by the ship, or the captain's stuff.
"The board found it difficult to understand the chain of events that have happened, and some of the processes on the vessel itself."
Scheer's office in Fort Lauderdale said all comment must come from the Cook Islands.
Tairea said he doesn't expect the marine board of inquiry he appointed will take much longer to supply the report.
"We're just as anxious to receive the report as anybody else. I'm going to force him (the inquiry chairman) to get the report out as soon as possible," he said in an interview last week.
He also noted that one member of the board of inquiry had been travelling to meetings of the International Maritime Organization, which had delayed the drafting of the final report.
Peter Lahay, the Canadian co-ordinator of the International Transport Worker's Federation, a trade union group that represents seafarers around the world, said the Transportation Safety Board of Canada and Transport Canada "should have taken some initiative" on the case.
"It should have been a Canadian investigation," he said. "It was a Canadian death, essentially a Canadian vessel. I think that's a strong enough connection for Canada to have had an investigation."
The safety board is supplying information to the Cook Islands to assist in its inquiry.
The Picton Castle accident happened last December about 880 kilometres southeast of Cape Cod, in seas with waves over seven metres and winds that gusted to more than 80 km-h.
After a three-day search for Gainey, the vessel continued its voyage to Grenada and spent the winter and spring travelling the Caribbean providing sail training to students and trainees.
The barque was also temporarily converted into a "pirate vessel" for producer Mark Burnett's latest reality series, Pirate Master.
Ken Potter, the manager of operations for the Transportation Safety Board of Canada, said Canadian authorities have the legal authority to conduct their own independent inquiry into such accidents, but chose not to in this case because international conventions dictate that the flag state should be the lead agency.
"We're not precluded from doing it," he said in an interview. "However, the flag state has the first right, and the first obligation to do so. In this circumstance it just seemed expeditious to allow the flag state to do it."
He said findings by the Canadian safety board legally require action by affected federal departments, but that isn't the case with the investigation done by the Cook Islands.
"Legislatively, if we make a recommendation to a minister, the minister is obliged to respond within 90 days to one of our recommendations," he said.
Asked if that applies to the probe into the Picton Castle, he responded: "Not on Canada."
"This, of course, was not a Canadian vessel."
The Transportation Safety Board is an independent agency with a mandate to identify safety deficiencies and report publicly on all of its findings.
For Capt. Ed Enos, it was among the most horrifying reports he could ever receive: A colleague had been killed during a ship transfer.
Enos, vice president of the Hawaii Pilots Association, received just such news on Jan. 29, 2006. Hawaii pilot Capt. David "Kawika" Lyman died after falling between a cruise ship and a pilot boat.
The Hawaii pilots weren't the only association that suffered a fatality on the job last year. Between January 2006 and February 2007, four pilots were killed across the United States in falls from pilot ladders. A fifth person — a pilot boat operator — died when his vessel overturned at the conclusion of a transfer.
The rash of deadly incidents has stunned the proud fraternity of bar pilots and has prompted soul-searching among pilot associations. Many groups have undertaken campaigns to upgrade safety equipment carried by pilots and their launch boats.
Pilot associations are increasing their use of life vests, lights, beacons and man-overboard-retrieval systems on their boats. Understandably, the Hawaii pilots were one of the first groups to act.
"This is quite a shocker for everybody," Enos said of the five U.S. deaths. "We hadn't had very many accidents nationally for a long time. It gets everybody thinking about and talking about what we are doing. One of the things we did immediately internally is to make sure that everyone is wearing a life jacket — the inflatable collars, with a night light."
From 1993 through 2005, only about four people lost their lives in pilot-transfer accidents in the United States, according to Coast Guard data. Since the beginning of 2006, the saddening U.S. tally includes these incidents:
• On Jan. 9, 2006, Columbia River Bar Pilot Kevin Murray fell into the Pacific Ocean as he was disembarking from a log carrier using a pilot's ladder in 18- to 20-foot seas. Murray, 50, drowned.
• Lyman's accident happened at Kauai. He fell into the water and was struck by the pilot boat. Lyman, the Hawaii association's former president, was 62.
• Boston Harbor Pilot Robert G. Cordes fell off a ladder near the top of his climb onto a bulk carrier Oct. 24, 2006, at Chelsea, Mass. Cordes, 60, landed on a barge alongside the ship and was killed.
• George Robert Frazier, 55, who operated a pilot boat for the Galveston-Texas City Pilots, drowned Jan. 20, 2007, when his boat capsized following the disembarkation of a pilot from an offshore support ship. The pilot was rescued.
• On Feb. 4, 2007, Chesapeake & Interstate Pilots Association President Lynn Deibert, 53, fell from a ladder into the Atlantic Ocean while climbing aboard a coal carrier off Cape Henlopen, Del. Deibert's body was never found.
Capt. Mike Watson, president of the American Pilots' Association, said pilots have also been killed recently in Japan, Uruguay, Egypt, India, France and Scandinavia. The accidents underscore the need for global solutions to improving shipboard ladder systems and safety procedures, as well as the habits of pilot crews themselves, he said.
"This is one of the worst years I've seen," said Watson, who is also president of the International Maritime Pilots' Association. "It has been a very trying time to witness your colleagues being injured and killed ... we are certainly upgrading our safety equipment."
Many pilot associations, including the San Francisco Bar Pilots, are reviewing lifesaving policies, purchasing new devices and adding more practice drills. California's Board of Pilot Commissioners has reactivated its safety committee as a result of the heightened awareness.
Capt. Peter McIsaac, president of the San Francisco pilots, said his association decided to improve its man-overboard beacon system. The group spent about $30,000 to buy ORCA receivers for two boats and about 20 new transmitters. They are also modifying their float coats to make it easier to connect a man-overboard rescue line.
"We take the coats to a sail maker, and they install a harness with two D-rings," McIsaac said. "That way you can just clip right in" to the line.
The San Francisco pilots have studied the recent fatalities and are incorporating similar scenarios into rescue drills. A common thread in the pilot deaths is the inability to rescue the man out of the water quickly.
"We have increased our man-overboard drills, and we're doing volunteer man-overboard drills where we get a volunteer to jump in the water. We're going to start doing nighttime man-overboard drills here for the first time ever — to see how our lights actually work and what distance they can be seen," McIsaac said.
"What the drills have shown is that we need to do more of them," he said. "I think it's something we should be doing almost monthly."
BriarTek Inc. of Alexandria, Va., is the supplier of the ORCA Man Overboard Alarm System, which includes personal beacons, receiver alarm units and direction finders. Only recently did BriarTek, which has sold 80,000 units to the U.S. Navy, begin marketing the system to civilian customers.
In addition to the San Francisco pilots, BriarTek has sold systems to New York's Sandy Hook Pilots. The spate of fatalities is generating a surge of interest in ORCA among pilot associations, said Joe Landa, BriarTek's director of product development.
"It has clearly had an impact. They're all reviewing their safety procedures and equipment," Landa said. "People have been evaluating our systems for a long time, but this has created a sense of urgency and now they want to get the system."
At Bridgeport, Conn., the deadly pilot accidents raised the stakes in a dispute over launch-boat safety. The Block Island Pilots, who are the joint rotation administrator for Long Island Sound, switched to a more expensive launch service. Their former provider had two 40-foot boats that were not equipped with adequate man-overboard retrieval systems and didn't have proper handrails, adequate decks or more than one means of egress from the boat, said Capt. Ken Warner, the Block Island Pilots' ranking official.
The changeover predates the 2006 fatalities, but the debate involving the original launch service is ongoing.
"We have certainly used these incidents to demonstrate why this is important," Warner said. "We refuse to use these boats. We just want the safest operation we can have."
Instead, pilots at Bridgeport are using the pricier service that sends out 65-foot, twin-screw boats equipped with a Jacob's cradle retrieval system.
A stringent focus on safety gadgets can be uncomfortable for tradition-bound pilots, whose profession is thousands of years old. Their wood-and-rope pilot ladders haven't changed much in over a century. Some pilots are even reluctant to wear a life vest or float coat.
Floatation devices weren't mandatory for Hawaii pilots until after the death of Lyman, who was not wearing one.
"Pilots are all independent contractors — a loose-knit group of independent contractors," Enos said. "Clearly, the life-jacket issue in recent years had become more of a concern in the group. With Dave's accident, we finally made it a hard-and-fast concrete rule that everybody has to have a life jacket on, period. There was a particular pilot who kind of stiff-armed that for a long time, but even he agrees that we all should wear life jackets now."
The Hawaii pilots have added extra floodlighting on their launch boats and a loudspeaker system to help them communicate instructions to the ship's deck hands. Enos said additional improvements probably will be ordered after the Coast Guard concludes its investigations of the fatal accidents and issues reports with new safety recommendations.
Kurt J. Heinz, chief of the Lifesaving and Fire Safety Standards Division at Coast Guard headquarters, confirmed that the Coast Guard may include industry-wide safety warnings in those incident reports. He declined to specify them before the investigations are completed.
One "logical" warning "might be wearing more effective life jackets," Heinz told Professional Mariner in March. "That's the kind of thing that might come out of it."
Although the Coast Guard doesn't directly regulate pilotage, the agency can influence the safety of pilot transfers because it approves the equipment, inspects U.S.-flagged vessels and has some authority over foreign-flagged vessels as the port-state law enforcer. Heinz said the Coast Guard is working with the International Maritime Organization to boost the amount of attention paid to pilot-transfer safety.
"I've heard a lot of anecdotal situations where a lot of pilot-transfer arrangements are not in good shape," Heinz said. "In the future, we'll be giving that some more attention."
Specifically, the Coast Guard is trying to develop a means of inspecting pilot ladders that goes beyond a simple visual inspection. That could result in a mandatory periodic load test, Heinz said. Such a test would be helpful because wood and rope wear out easily in a sea environment, he said.
"It could be materials that deteriorate or just poor maintenance or you get steps broken," Heinz said. "The nature of a pilot ladder is, when you're using it regularly, it gets banged between the pilot boat and the ship."
Another factor that may force pilot associations to address safety hazards aggressively is the threat of costly legal liability. In Oregon, Murray's widow has filed a federal lawsuit against the owners of the pilot boat and the ship involved in the ill-fated disembarkation. The suit alleges unseaworthiness, negligence and workplace safety deficiencies.
It's true that the pilot's job is getting more dangerous, Watson said. The average length of the climb up and down the ladder has become longer — with more and more ships requiring a climb that approaches the IMO's maximum pilot-ladder height of around 29.5 feet.
"The size of the ships has changed today," Watson said. "We have cruise ships and car-carrier ships that are very high-sided and bulk ships that are huge. When they're empty and sitting out of the water, it's a very high climb to get on that deck."
One thing that U.S. pilots likely never will accept is any kind of lifeline system that harnesses the pilot to the ship. Such safety lines have been proposed and rejected. A pilot simply must have freedom to move in a split-second, without interference, most pilots feel.
"We take precautions, but sometimes the precaution becomes a hazard," Francis Burn, vice president of the Chesapeake & Interstate Pilots, said of the harness idea.
Mountain climbers and utility repairmen may benefit from a lifeline system, but they are tethered to a fixed object. Marine pilots transfer between two objects — the ship and the boat — that are moving independently.
The movements of a ship in heavy seas is "the equivalent of an elevator going up and down four floors in a couple of seconds," said Capt. Rick Hurd, vice president of the San Francisco Bar Pilots. "Imagine yourself tethered to something that's in that dynamic of a situation. I wouldn't want it."
Years ago, mariners had high hopes for one technological answer to the pilot-transfer challenge: the mechanical pilot hoist. The device, operated by the ship's deck hands, uses a pulley system to raise or lower the pilot in a bucket.
Ships' crews simply aren't trained well enough to operate such a device safely, Watson said. He speaks from experience. He once fell out of a hoist bucket when the deck hands on a coal carrier messed up the rigging by tying one of the tag lines to a stanchion. The bucket tipped.
"Pretty soon I was playing Mr. Gymnast, and I'm hanging on by my hands, upside down, in the middle of the air, and I dropped into the water," Watson said. "We've had too many of these accidents."
While pilot associations are taking some safety precautions into their own hands, they say even more must be done on the ships.
The IMO's Design and Equipment Subcommittee and Safety of Navigation Subcommittee are considering a series of adjustments to global safety practices. The International Maritime Pilots' Association has asked for the reforms to standardize dimensions of the ladders and manropes, among other things.
After the IMO's Maritime Safety Committee considers the subcommittees' recommendations on the changes, new standards could go into effect within the next few years.
Even under existing rules, many ships are below minimal safety standards, according to the APA and IMPA. Often pilot ladders are homemade, rungs are crooked, deck lighting is poor and, sometimes, no ship's officer bothers to be present for the embarkation.
"Pilots still encounter many, many substandard pilot ladders and accommodation ladders," Watson said. "And the (ship) crews are not as quality as they used to be."
Maybe it's time for individual pilots to speak out more often when they discover hazards on ships, Watson suggested.
"The pilots don't routinely report every slight violation of the rigging standards. That could be their own problem," Watson said. "Pilots will go aboard and use this substandard equipment many times because they are dedicated and they say, ‘What the heck.'"
Heinz, the Coast Guard safety expert, said, "If a pilot finds a ladder that is unfit for use, then it's up to the pilot to wave it off and say, ‘I'm not going to use that ladder.'"